Citation Nr: 0507133
Decision Date: 03/11/05 Archive Date: 03/21/05
DOCKET NO. 94-33 599 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for osteoarthritis and
degenerative disc disease of the cervical spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty training in the Army
National Guard from November 6, 1984, to March 16, 1985, and
periodically on inactive duty for training from November 1988
to June 1990.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a November 1993 rating decision of the St.
Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO). The RO denied service connection for
osteoarthritis and degenerative disc disease of the cervical
spine.
In September 1997 and September 2002, the veteran testified
at personal hearings before two of the undersigned Veterans
Law Judges. Transcripts of those hearings have been
associated with the claims file.
In December 2002, the Board denied service connection for
osteoarthritis and degenerative disc disease of the cervical
spine. The veteran appealed the Board decision to the United
States Court of Appeals for Veterans Claims (Court). In
April 2003, the Secretary of VA filed a motion to vacate the
Board decision and remand it, asserting that the Board had
not provided sufficient reasons or bases to support its
conclusion that VA had provided adequate notice to the
veteran in compliance with the Veterans Claims Assistance Act
of 2000 (VCAA). The veteran did not oppose the motion. The
Court granted the motion in July 2003.
When the case was returned to the Board, it remanded the
claim for additional development and adjudicative action in
compliance with the Secretary's motion for remand. The case
has been returned to the Board for further appellate review.
FINDING OF FACT
The preponderance of the evidence is against a finding that
the current diagnoses of osteoarthritis and degenerative disc
disease of the cervical spine had their onset in service, to
include being manifested to a compensable degree within one
year following the veteran's discharge from service.
CONCLUSION OF LAW
Osteoarthritis and degenerative disc disease of the cervical
spine were not incurred in or aggravated by service and may
not be presumed to have been incurred in service.
38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify & Assist
The President signed into law the VCAA on November 9, 2000.
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The
legislation provides, among other things, for notice and
assistance to claimants under certain circumstances. VA has
issued final rules to amend adjudication regulations to
implement the provisions of the VCAA. See 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a). These regulations
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits.
As required by 38 U.S.C.A. § 5103(a), prior to the initial
unfavorable agency of original jurisdiction decision, the
claimant must be provided notice consistent with 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should give VA
everything the veteran has in his possession pertaining to
the claim.
In the instant case, VA has notified the veteran of the
information and evidence not of record that is necessary to
substantiate his claim for service connection for
osteoarthritis and degenerative disc disease of the cervical
spine in a May 2004 letter. VA informed the veteran that in
order to establish service connection for degenerative disc
disease of the cervical spine, he would need to submit
evidence that he had an injury in service, a current
disability associated with the cervical spine, which was
usually established by medical evidence, and a nexus between
the current disability and service, which was usually
provided by a medical professional. The letter also notified
the veteran that VA was responsible for getting relevant
records from any federal agency, which included records from
the military, VA records (which included private facilities
where VA authorized treatment) and from the Social Security
Administration. VA also told the veteran that on his behalf,
it would make reasonable efforts to obtain any relevant
records not held by a federal agency, which could include
records from state or local governments, private doctors and
hospitals, and current or former employers. Finally, VA told
the veteran, "Please provide us with any additional evidence
or information you may have pertaining to your claim."
Additionally, VA has notified the veteran the reasons why
service connection for degenerative disc disease of the
cervical spine is not warranted in the November 1993 rating
decision, the December 1993 statement of the case, and the
April 1995, October 2000, and October 2004 supplemental
statements of the case. The veteran was informed that the
service medical records did not show evidence that he had
sustained an injury to his cervical spine and that there was
a lack of evidence of a nexus between the current diagnoses
of osteoarthritis and degenerative disc disease of the
cervical spine and service. The statement of the case also
fully provided the laws and regulations pertaining to
entitlement to the benefits sought. The duty to notify the
veteran has been satisfied under the circumstances of this
case. 38 U.S.C.A. § 5103.
The Board recognizes that the VCAA notice sent to the veteran
was subsequent to the rating decision which gave rise to this
appeal; however, the Board finds no prejudice to the veteran.
The veteran was adequately furnished with the type of notice
required by VCAA and has had an opportunity to identify
evidence and submit evidence in connection with his claim.
Any error resulting from VCAA notice subsequent to the
initial rating decision was harmless error, as it pertains to
this issue. See Bernard v. Brown, 4 Vet. App. 384 (1993).
The RO's subsequent actions and notice to the veteran
effectively cured any VCAA notice defect. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004). The veteran was informed
of the evidence necessary to substantiate his claim. The
provisions of VCAA have been substantially complied with and
no useful purpose would be served by delaying appellate
review of this claim for further notice of VCAA.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2004). In connection
with the current appeal, the RO has obtained private medical
records, dated from 1989 to 1996. In May 1998, the RO
attempted to obtain private medical records from Jackson
Memorial Hospital. In September 1998, that hospital informed
VA that it was unable to locate the veteran's name in their
files. The veteran was properly informed of VA's inability
to obtain these records in the October 2000 supplemental
statement of the case. The veteran has not reported having
received treatment from VA. Additionally, VA has provided
the veteran with both examinations and medical opinions in
connection with his claim for service connection. It does
not appear that there are additional medical treatment
records that are necessary to proceed to a decision on the
issue being decided in this case.
For the foregoing reasons, the Board concludes that all
reasonable efforts were made by the VA to obtain evidence
necessary to substantiate the claim. The Board finds that
the evidence of record provides sufficient information to
adequately evaluate the claim, and the Board is not aware of
the existence of any additional relevant evidence which has
not been obtained. Therefore, no further assistance to the
veteran with the development of evidence is required.
38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).
II. Factual Background
Service medical records indicate that the veteran was treated
for a fall in November 1984. He was treated for his left
knee and right shoulder. An undated record shows that the
veteran was seen with cramping of his left knee after having
fallen five to six days prior. The veteran stated that he
had hit his right shoulder on the bed, but was doing "OK"
now. Following examination, the examiner entered an
assessment of contusion to the right patella. Later in
November 1984, the veteran complained of left knee and back
pain. The examiner stated that the veteran's back pain did
not radiate into the leg. Seven days later, the veteran was
seen again for left knee pain. In February 1985, the veteran
was seen for left gluteal medial strain. The veteran
reported improvement. In June 1985, the veteran was seen
with left hip pain, which the examiner noted pre-existed
service according to the veteran. The examiner entered an
impression of musculoskeletal strain and sprain.
An August 1988 report of medical examination shows that
clinical evaluation of the veteran's neck and spine was
normal. In a report of medical history completed by the
veteran at that time, the veteran reported receiving
treatment for his neck from a chiropractor.
Service medical records from periods of inactive duty
training show that in March 1989 the veteran was treated for
complaints of pain in his left shoulder and neck, which he
stated had been occurring for three weeks. The examiner
stated that it was possible that the veteran had a pinched
nerve. A March 1989 private treatment note indicated that
the veteran reported being hit on the left side by an
automobile in 1967 when he was 13 and that x-rays were
negative. He also reported being treated by a chiropractor
from December 1987 to March 1988 for his neck pain.
A May 1989 letter from a private physician indicated that the
veteran was diagnosed with degenerative disc disease of the
C-6/C-7 causing pain in his neck with limitation of motion of
the head and neck. A March 1990 letter from a private
physician indicates that the veteran was "suffering from
degenerative disc disease of the cervical spine with
spondylosis at C5." She recommended that the veteran avoid
lifting. An April 1990 memo, entitled, "Request for Review
of medical Evaluation," shows that the veteran informed his
unit's trainer that the "injury" was "civilian job
related."
Private medical records, dated from 1990 to 1992, show
treatment for dizziness due to degenerative disc disease, low
back pain, right shoulder pain, right knee pain, and other
complaints.
A July 1993 VA examination report indicated that the veteran
reported falling in 1984, injuring his left knee, left
shoulder, and neck. The veteran reported constant pain in
his neck since that time. The examiner diagnosed the veteran
with post-traumatic arthralgia of the neck. A July 1993 VA
x-ray report indicated that the veteran had osteoarthritis
and degenerative disc disease at C5-6 and C6-7.
In April 1995, the veteran testified before a hearing officer
at a hearing held at the RO in April 1995. He stated he
injured his neck in a fall during basic training. He stated
he injured both knees, but that his left knee sustained more
of the injury. He also stated he injured his shoulder. The
veteran testified he was treated and put on light duty and
given medication. The veteran indicated that he remembered
feeling pain in his neck at the time of the injury, but
thought that such could not be indicative of a genuine
problem. He denied injuring his neck after the 1984 fall.
He testified that he had not seen a doctor from 1985 to 1989
because he was physically fit and that exercise would knock
out his pain. He stated that in 1989, he experienced neck
pain that prompted him to see a private physician while on
annual training. The veteran's wife testified that he told
her about the accident after it happened. She stated that
the pain in his neck had gotten worse over the years.
The veteran submitted a statement in January 1999 indicating
that the chiropractor that treated him in 1987 and 1988 was
no longer in practice. He stated that he had no further
evidence to submit.
In September 1997, the veteran testified at a personal
hearing before one of the undersigned Veterans Law Judges.
He reiterated the testimony he had provided at the April 1995
hearing. The veteran indicated that he had sought treatment
for his neck during training between 1988 and 1990.
A June 1999 VA examination report shows that the veteran
reported being treated for his neck in 1984. He stated that
the veteran was in service from "1984 to 1993." Following
physical examination, the examiner diagnosed the veteran with
cervical arthritis with myositis. In March 2000, the
examiner issued an addendum to the June 1999 VA examination
report after reviewing the claims file and the November 1997
Board remand instructions. The examiner indicated that the
only records from service referencing a neck problem were
dated in 1989. He went on to state, "[I]f [the veteran] was
in service in 1987, then he did hurt his neck at that time,
and he sought treatment during that time." The examiner
went on to state his belief that the veteran's neck
disability was "related to his service in the military to
the extent that he has developed arthritis in the neck." He
also stated that he was "unable to [give] any further
enlightenment to the question of whether or not his neck
condition is service related other than to state as [he]
had." The examiner noted that the veteran's records
indicated that he had a problem in 1989, "which did not
occur at that time, but which was present for approximately
one year, according to history stated in the medical
record."
In September 2002, the veteran testified at a personal
hearing before one of the undersigned Veterans Law Judges.
The veteran stated that he hurt his neck while in basic
training in 1984. He stated that he tripped and had bumped
his shoulder and his neck. The veteran testified that he did
not want to go to a doctor. He noted that later on he had
gone to see a doctor for the pain in his shoulder and neck
and that he was seen regularly for this pain. The veteran
stated that the injury in 1984 was the first injury he had
sustained to his neck. He stated that the pain in his neck
was constant from the time of the injury. The veteran
testified that the first time he had been diagnosed with
degenerative disc disease of the cervical spine was in 1987.
He denied sustaining an injury to his neck between 1984 and
1987. He also denied that the injury in 1965 had occurred to
his neck.
At the hearing, the veteran submitted a letter from his wife.
She stated that she and the veteran had been married for 27
years, and she attested to his good character. She stated
the veteran had had pain in his neck since his injury in
service and simply dealt with it. The veteran's wife stated
that she would need to help the veteran at times because of
the pain.
In a June 2003 letter from a fellow soldier, who had served
with the veteran, he attested to the veteran's fall while in
service. He noted that following his injury, the veteran had
been put on profile.
A May 2004 VA report shows that the examiner had an
opportunity to review the veteran's claims file. He reported
past medical history based upon a review of the records in
the claims file and concluded, "In my opinion, it is less
likely that the cervical disc disease is related to his
alleged in-service injury."
III. Legal Criteria & Analysis
The veteran contends that service connection for
osteoarthritis and degenerative disc disease of the cervical
spine is warranted. He states that while he was in service,
he injured his neck during a fall and that the current
diagnoses of osteoarthritis and degenerative disc disease of
the cervical spine are the result of the fall in 1984.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection
for a chronic disease, such as arthritis, may be granted if
manifest to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2004). Service
connection may be granted for any disease diagnosed after
service when all the evidence establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d) (2004).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the veteran had a chronic condition in service or during
an applicable presumption period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the Court's case law, lay
observation is competent. Savage v. Gober, 10 Vet. App. 488,
498 (1997). In addition, if a condition noted during service
is not shown to be chronic, then generally a showing of
continuity of symptomatology after service is required for
service connection. 38 C.F.R. § 3.303(b) (2004).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of service connection for osteoarthritis and
degenerative disc disease of the cervical spine. While the
veteran is competent to state that he injured his neck in
service, the service medical records do not substantiate the
veteran's allegation of an in-service injury to the neck.
The service medical records also do not support the veteran's
allegation of constant pain in his neck stemming from the
November 1984 injury. For example, each time the veteran was
seen in November 1984 and in 1985, he did not report neck
pain. The veteran reported knee, shoulder, and lower back
pain. The service medical records are silent for any
complaints of neck pain and silent for any finding that the
veteran was put on profile because of neck pain.
The first showing of a complaint of neck pain was in the
August 1988 report of medical history, wherein the veteran
stated he had been seen by a chiropractor for a "neck
problem." When seen in early March 1989, the veteran
reported pain in his left upper shoulder/back for three
weeks. In a March 24, 1989, medical record, when reporting
his "past history (illnesses, accidents)," the veteran
reported injuries in 1965 and 1967 and being treated for low
back and neck pain from December 1987 to March 1988. In an
April 1990 "Request for Review of medical Evaluation," the
author noted the veteran reported that "this injury" was
civilian job related. It was not until the veteran's claim
for service connection in June 1993 that he attributed his
neck pain to an injury he sustained in service.
The Board finds that the preponderance of the evidence is
against a finding that the veteran sustained a neck injury
while in service in 1984. As stated above, the service
medical records do not substantiate the veteran's allegation
that he injured his neck in service or that he had constant
pain in his neck following the injury. The veteran was seen
multiple times in service at the time of the injury and
subsequently, and those records are silent for any report of
neck pain. The veteran has submitted a statement from one of
his fellow soldiers corroborating that the veteran fell while
in service. The service medical records show that the
veteran had sustained a fall in November 1984, and the Board
concedes that a fall occurred. The soldier, however, did not
state that he had witnessed the veteran sustain an injury to
his neck; rather, he stated only that the veteran had fallen
in general. There was no mention of the specific injury or
injuries the veteran had sustained at that time. Thus, this
statement from the soldier does not establish that the
veteran sustained an injury to his neck in service.
Additionally, when reporting his past accidents, in the March
1989 record, the veteran did not report an injury to his neck
in 1984. Rather, he reported injuries that had occurred 30
years prior. His silence regarding the 1984 accident, when
otherwise elaborating about his medical circumstances,
constitutes negative evidence, which weighs against a finding
that the veteran sustained an injury to his neck in November
1984. For the reasons stated above, the Board has determined
that the preponderance of the evidence is against a finding
that the veteran sustained an injury to his neck in November
1984.
Lending credence to this determination is the lack of
evidence of continuity of symptomatology from 1984 until
1987. The veteran states that while he did not receive
treatment for his neck pain during that time, he had neck
pain. Again, the objective evidence of record does not
substantiate the veteran's allegation that he had constant
neck pain beginning in 1984. The 1989 medical records do not
show the veteran attributing his neck pain to an in-service
injury. Additionally, while it is unclear what "injury" is
being addressed in the April 1990 "Request for Review of
Medical Evaluation," it is evidence against a finding that
the "injury" was sustained during a period of service, as
the veteran admitted it was a civilian-job-related injury.
There is no competent evidence that osteoarthritis or
degenerative disc disease was manifested to a compensable
degree within one year from the veteran's discharge from
service. Finally, there is a lack of competent evidence of a
nexus between the post service diagnoses of osteoarthritis
and degenerative disc disease of the cervical spine and
service. In a May 2004 medical opinion, a VA examiner, who
had an opportunity to review the claims file, determined that
it was less likely that the veteran's degenerative disc
disease of the cervical spine was related to the in-service
injury. This is evidence against the veteran's claim.
Additionally, in a March 2000 addendum, the VA examiner
stated that the veteran's neck disability was "related to
his service in the military to the extent that he has
developed arthritis in the neck." However, this statement
relating the veteran's cervical spine arthritis to service is
predicated on the assumption that "if [the veteran] was in
service in 1987, then he did hurt his neck at that time, and
he sought treatment during that time." The Board has
accorded little to no probative value to this medical
opinion, as it relies on an inaccurate factual premise-that
the veteran was in service in 1987. Neither the record nor
the veteran have shown that the veteran was in service in
1987. See Black v. Brown, 5 Vet. App. 177 (1993) (Board is
not bound to accept medical opinions based on history
supplied by veteran, where history is unsupported or based on
inaccurate factual premises); see also Swann v. Brown, 5 Vet.
App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993);
Guimond v. Brown, 6 Vet. App. 69 (1993). The Board has
accorded high probative value to the May 2004 medical
opinion, as it is based upon a review of the entire record
and the facts reported by the examiner are accurate.
While the veteran has attributed the current diagnoses of
osteoarthritis and degenerative disc disease of the cervical
spine to service, he does not have the requisite knowledge of
medical principles that would permit him to render an opinion
regarding matters involving a medical diagnosis. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
In the absence of competent evidence of an in-service injury,
of continuity of symptomatology from the time of the injury
until 1989, or of a nexus to service, the claim for service
connection for osteoarthritis and degenerative disc disease
of the cervical spine is denied. Accordingly, for all the
reasons stated above, the Board finds that the preponderance
of the evidence is against the veteran's claim, and there is
no doubt to be resolved. See Gilbert, 1 Vet. App. at 55.
ORDER
Service connection for osteoarthritis and degenerative disc
disease of the cervical spine is denied.
C. W. SYMANSKI HOLLY E. MOEHLMANN
Veterans Law Judge
Veterans Law Judge
Board of Veterans' Appeals
Board of Veterans' Appeals
______________________________________
JEFF MARTIN
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs